Friday, March 27, 2009

Is Barney Frank Right that Justice Scalia is a Homophobe But Justice Thomas is Not?

To defend his off-the-cuff charge that Justice Scalia is homophobic, Barney Frank points to Scalia's dissents in Romer v. Evans and Lawrence v. Texas. Scalia's rhetoric in those opinions indicates, according to Rep. Frank, that Scalia does not simply take the view that the Constitution is silent with respect to gay rights---a position that a reasonable person could take on strictly jurisprudential grounds---but that on policy grounds Scalia favors laws that discriminate against gay people and criminally punish same-sex sexual relations. To drive home his point, Frank contrasts Scalia's views with those of Justice Thomas, who wrote in his dissent in Lawrence that he regarded the Texas anti-sodomy law as "silly," and would vote to repeal it if he were a legislator, but that the law is not unconstitutional. (Thomas's somewhat odd choice of the word "silly" was a result of the fact that he was quoting Justice Stewart's dissent in Griswold v. Connecticut.)

Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

Reading these lines with the utmost charity to Justice Scalia, it's possible that he himself isn't one of the people who would shun a gay business partner, scoutmaster or teacher for his children, or boarder in his home, but is only saying that these are attitudes others hold. To what end, though? It's one thing to say that discrimination against gay people is legal and widespread, but Frank is surely right that the tone of Scalia's dissent is at the very least, grossly insensitive.

Justice Scalia's Romer dissent is just as bad, including a passage that Rep. Frank does not quote. In the course of explaining why he thinks that the Court should not be troubled by discrimination against gay Coloradons, Justice Scalia says it is "nothing short of preposterous to call 'politically unpopular' a group which enjoys enormous influence in American media and politics." If you have difficulty seeing this statement as homophobic, imagine that the referent were Jews instead of gays, and ask whether it wouldn't obviously be anti-Semitic.

But now the tricky part. Rep. Frank is right to note that Justice Thomas took pains to distance himself from the policy of the Texas legislature in Lawrence. However, Justice Thomas also joined Justice Scalia's dissents in both Lawrence and Romer. But if those dissents were homophobic and Justice Thomas is, according to Rep. Frank, not a homophobe, why did he join them?

I think two possible (potentially overlapping) answers could be given. One is that the Scalia dissents give rise to a strong suspicion of homophobia, and that because Justice Thomas did not want to be associated with that sentiment, he went out of his way to distance himself. On this view, Justice Scalia's (and the late Chief Justice Rehnquist's) failure to cross-join Justice Thomas's Lawrence dissent reinforces the conclusion that Scalia is in fact homophobic: Unlike Justice Thomas, Scalia approved of the Texas law in Lawrence on policy grounds.

The second point is that the author of a dissent or other opinion has much greater control over its precise wording than a Justice who merely joins. Under the Court's customs, a joining Justice can request specific wording changes that reflect differences in his or her views about the law, but it would have been hard for Justice Thomas to condition his joinder on Justice Scalia "toning down the homophobic rhetoric." That's not to say that Justice Thomas shouldn't have tried to get Justice to Scalia to change some of the most offensive bits, but for all we know, the original versions of the Scalia dissents in Romer and Lawrence were even more homophobic.

Bottom Line: Rep. Frank has made a very strong case that Justice Scalia is more likely to be homophobic than is Justice Thomas.

14 comments:

Nice post, Mike. I'm wondering why we're even debating this, though, given Scalia's obvious and pungent homophobia. (Similarly, he fails to hide his contempt for environmentalists in Lujan.) Does Scalia even care that he's seen as a homophobe? If so, I guess it's kind of like Pat Buchanan (no relation) denying that he's a racist. That is, there's good reason to be happy that even obvious bigots feel the need to deny their bigotry.

Just a remark Professor Dorf: I wonder whether your analysis of Rep. Frank´s argument overlooks, or at least does not adequately reflect upon, the following point.As I understand Justice Scalia's reasoning that you cite from the opinions, they are a part of his more general point that both Romer and Lawrence are cases which essentially deal with the question whether legislation can be predominantly based on the prevalent majorities' moral viewpoint on certain conduct or classes of persons, and whether such premises can legitimately form the grounds for limiting constitutional rights. With the remarks you cite from the opinions, Justice Scalia is therefore describing "the moral viewpoint" in question that forms part of his more broader constitutional argument. I guess one could certainly argue that the substance of that particular moral viewpoint can in general be characterised as "homophobic", which of course depends on the definition of that concept one is using. But if one interprets the remarks in the context of the Justice's more general argument, I am not sure one can reasonably conclude that they also necessarily form part of the Justices' "personal" point of view. It is of course another matter, whether one agrees with Justice Scalia´s constitutional argument. I leave that debate for another day.Yours, Robert R. Spano, Professor, University of Iceland.

The claim that Antonin Scalia is homophobic is laughable. There most certainly is a “homosexual agenda,” and it consists in the scholarship of gay activists (who also happen to be respected legal scholars in other respects) and the advocacy of public law firms like Lambda Legal and Empire State Agenda. There is ample “gaylaw” from family law scholars who hope to eradicate traditional marriage because they consider it a situs of patriarchal oppression that furthers domestic violence and the subordination of women. Advancing the cause of gay marriage is less about equality for them as it is about destroying traditional marriage, which they hate. Their cause is intertwined with the cause of gay activists who actually do seek “equality,” but who really want a combination of financial benefits plus public recognition for their sex practices. That public recognition, in turn, will be used to taunt religious folk who want to condemn their sex practices. There is nothing intrinsically wrong with this agenda, but it exists. To pretend that limning the contours of this agenda in a Supreme Court opinion makes one a homophobe is quite ridiculous. Any number of homosexuals who do not feel represented by Lambda Legal and their litigation strategy (or liberals who prefer lobbying and legislation to litigation) have criticized the “homosexual agenda”. One example is Andrew Sullivan.

It is also laughable to play Clarence Thomas against Antonin Scalia. They both signed onto the same dissents and they are equally conservative and Catholic. Perhaps Antonin Scalia does not think public morals legislation silly. Well, neither do millions of Americans, and neither have Americans historically thought so. That doesn’t make it right: but would we call Scalia a bigot if Lawrence had been about polygamy? Probably not, despite the fact that legal systems rooted in English common law have recognized and worked out polygamous property rights (e.g., Uganda), there is a thriving polyamory community in the United States and Europe, and intimate association has been recognized as a human right. So the reason some call Scalia a bigot in the case of “gaylaw” must be due to politics. Only political clout explains the difference between the favorability of gay law and the unpopularity of rights for “Big Love.”

That brings us to the comparison to Jews. A truly risible comparison, as anti-Semitic derision toward Jewish influence has historical precedent. As a traditional matter, Jews were excluded from the mainstream economy and as a consequence maintained closely-held businesses in professions prohibited for Christians, such as money-lending, and in unorthodox lifestyles, such as academia before universities were a path to career success. The hatred toward Jewish success, then, is a reaction of the powerful against those that have thrived despite discrimination and exclusion. By contrast, there has been no gay identity or gay community that was systematically oppressed as a group for centuries. Certain sex acts may have been disfavored, but that is not the same as anti-Semitism, certainly not in a world with the Inquisition and the Holocaust. Thus, when one compares anti-Semitism to pointing to the influence of the gay lobby, it is quite unfortunate. The gay lobby is quite effective; but pointing that out is not equivalent to arguing that Jewish money-lenders secretly run the global economy. Antonin Scalia is not Adolf Hitler and he is not urging on Kristallnacht. The chutzpah of anyone who says different.

Whoa---I'm an having issues with the logical leap taken by Prof. Dorf. I always thought the reason why Scalia didn't join Thomas was that it's not the business of a judge to pronounce whether a law is "silly"...

Prof. Dorf and Rep. Frank both omit an important part of Scalia's disset in Lawrence:

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so."

That seems clear enough.

Prof. Dorf says: "If you have difficulty seeing this statement as homophobic, imagine that the referent were Jews instead of gays, and ask whether it wouldn't obviously be anti-Semitic."

It is not. Are you seriously suggesting that Jews are politically unpopular? Do you have any kind of evidence to back up such an assertion? Or maybe you have some definition of "politically unpopular" that I'm missing.

I would argue that Rep. Frank's argument is exactly wrong. His homosexuality is a (completely dishonest) defense to legitimate questions about his conduct in Congress. Suppose, for example, I were to ask him whether he has any conflict of interest in legislating Freddy Mac while his lover sits on its board. Rep. Frank would immediately turn my honest question about a very serious appearance of impropriety into an attack on his sexual preference, and thereby avoid the question -- and suffer no political backlash whatsoever for using his sexuality as a shield.

There's so much in the comments but I thought I'd just respond to one point. Anonymous blogger is wrong to say that the vast gay conspiracy (of which I am apparently a part) would so easily dismiss the claims of polygamists. Here's what I wrote in "God and Man in the Yale Dormitories," 84 Va. L. Rev. 843, 851 (1998):

"the compelling interest test has the salutary effect of focusing political attention on oppressive but constitutional laws. Consider Reynolds, which involved a claimed religious exemption from a polygamy prohibition. What interest do polygamy prohibitions serve? Those of us who have argued for sexual freedom or sexual orientation equality have often encountered the objection that if our claim were to prevail then polygamy laws would also be unconstitutional, a result assumed to be self-evidently absurd. In response, we typically attempt to distinguish polygamy by arguing that it is inherently coercive or that its social meaning is the subjugation of women (or perhaps men in the case of polyandry). But before resorting to arguments from false consciousness to distinguish polygamy, we might pause to wonder why those on the other side of the sexual liberty or equality question invoke the practice. I suspect that they cite polygamy, consensual nonprocreative adult sibling incest, and other taboos precisely because they know that laws prohibiting these practices in fact serve no valid purpose, and they also know that our leading constitutional organs will be unwilling to say so."

Of course, it's possible that I was being completely insincere when I wrote that, because, like the same-sex couples who profess to want to marry their life partners (as imagined by anonymous blogger) my real goal was simply to destroy traditional marriage. Damn, I'm so insidious!

"Of course, it's possible that I was being completely insincere when I wrote that..."

That's precisely the argument one would have to make about the Scalia quote I provided -- that he was being insincere. I'm willing to take Prof. Dorf's word about his sincerity. Shame no one wants to give Scalia the benefit of the doubt.

Anecdotally, the liberal kids in my 14th Amendment class were all shocked and horrified at the homosexuality/polygamy argument, but none of them actually tried to draw a reasoned distinction between them for constitutional purposes.

Shortly after Lawrence, I was making a slippery slope argument and noted that NAMBLA types agitate for legalized pederasty. My shocked colleague exclaimed "but that's illegal!" I responded that so was homosexuality, until two weeks ago. The conversation ended abruptly.